By | December 9, 2020

Basic Structure means those basic fabrics of the Indian Constitution which cannot be hindered by an Act of Parliament.

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

There are a series of cases that led to the emergence of Basic Structure in the Constitution.

There is no mention of the term “Basic Structure” anywhere in the Indian Constitution. The idea that the Parliament cannot introduce laws that would amend the basic structure of the constitution evolved gradually over time and in many cases. The idea is to preserve the nature of Indian democracy and protect the rights and liberties of people. This doctrine helps to protect and preserve the spirit of the constitution document.

Following are the cases and their relevant outcomes of BASIC STRUCTURE OF THE CONSTITUTION:

Shankari Prasad case(1951)

The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.

GolakNath case(1967)

The Supreme Court reversed its earlier stand. The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’
position and hence, the Parliament cannot abridge or take away any of these rights.

24th Amendment Act (1971).

This was the reaction of Parliament to the Supreme Court judgment in the GolakNath case. This Act amended Articles 13 and 368. It declared that under Article 368 the Parliament has the power to abridge or take away any of the fundamental rights and such an act will not be law under the meaning of Article 13.

KesavanandaBharati case3 (1973)

The Supreme Court overruled its judgment in the GolakNath case (1967).
It empowered the Parliament to abridge or take away any of the Fundamental Right. It also laid down a new doctrine of the ‘basic structure’. It ruled that under Article 368, the parliament is not empowered to amend the Basic Structure of the Constitution.

42nd Amendment Act (1976)

This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament.
It also widened its scope of the amendment under Art.368. No amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

Minerva Mills case.

Under this case, the Supreme Court invalidated the provisions mentioned in 42nd AmendmentAct. Supreme Court added that Judicial Review is part of the Basic Structure of the Constitution.

WamanRao case(1981)

Through this case, the Supreme Court clarified that the doctrine of the ‘basic structure’ will apply to constitutional amendments enacted after April 24, 1973.

Elements of the Basic Structure of the constitution.

  • There are no fixed elements as such under the Basic Structure of the Constitution.
  • The Supreme Court is yet to decide and clarify it.
  • But according to the various cases of Supreme Court, the following list has been prepared under the
  • Basic Structure:
  • Supremacy of the Constitution
  • Sovereign, democratic and republican nature of the Indian polity
  • Secular character of the Constitution Separation of powers between the legislature, the executive, and the judiciary
  • Federal character of the Constitution
  • Unity and integrity of the nation
  • Welfare state (socio-economic justice)
  • Judicial review
  • Freedom and dignity of the individual
  • Parliamentary system
  • Rule of law
  • Harmony and balance between Fundamental Rights and Directive Principles
  • Principle of equality
  • Free and fair elections
  • Independence of Judiciary
  • Limited power of Parliament to amend the Constitution
  • Effective access to justice
  • Principles (or essence) underlying fundamental rights.
  • Powers of the Supreme Court under Articles 32, 136, 141, and 1426 20.Powers of the High Court under Articles 226 and 2277

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